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STATE OF CONNECTICUT v. MIGUEL ARROYO(SC 17804)

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.*

Argued March 12—officially released December 11, 2007

Giovanna Shay, with whom were Efren Olivares andBrett Dignam, law student interns, and, on the brief,Allegra McLeod and Jason Smith, law student interns,for the appellant (defendant).

John A. East III, senior assistant state’s attorney,with whom, on the brief, were Michael Dearington,state’s attorney, and Michael Pepper, senior assistantstate’s attorney, for the appellee (state).

Opinion

BORDEN, J. The defendant, Miguel Arroyo, appeals1

from the judgment of conviction, rendered after a jurytrial, of two counts each of the crimes of sexual assaultin the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the fourth degree in violationof General Statutes § 53a-73a (a) (1) (A), and risk ofinjury to a child in violation of General Statutes § 53-21 (2), and with one count each of the crimes of attemptto commit sexual assault in the first degree in violationof General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2),attempt to commit sexual assault in the fourth degreein violation of §§ 53a-49 (a) (2) and 53a-73a (a) (1)(a), and attempt to commit risk of injury to a child inviolation of §§ 53a-49 (a) (2) and 53-21 (2). The defen-dant claims that the trial court improperly: (1) pre-cluded the admission of certain third party culpabilityevidence proffered by the defendant and denied thedefendant’s request for a third party culpability charge;(2) admitted statements of a forensic interviewer underthe medical diagnosis or treatment exception to thehearsay rule; (3) admitted the testimony of the victim’steacher under the constancy of accusation doctrine; (4)admitted the victim’s videotaped testimony, as well asthe testimony of certain witnesses recounting the vic-tim’s out-of-court statements in violation of Crawfordv. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.2d 177 (2004); (5) failed to inquire adequately into thedefendant’s complaints of lack of communication withhis attorney; and (6) failed to inform the defendantof his right to consular notification under the ViennaConvention on Consular Relations.2 Because we agreewith the defendant that the court improperly declinedto give the requested third party culpability charge, wereverse the judgment of conviction and remand the caseto the trial court for a new trial.3

The jury reasonably could have found the followingfacts. The victim’s parents, who are originally fromCuba, met the defendant, also a native of Cuba, at Guan-tanamo Naval Base before emigrating to the UnitedStates. Eventually, the parents asked the defendant tobe the godfather to their two children, the victim andher younger brother. During the relevant time period,between late November, 2001, and May 23, 2002, thedefendant occasionally slept at the home of the victim,who was five years old at the time of these events. Alsoduring that time period, the victim’s father, who hadbeen living out of state, returned to live with the familyas of December 10, 2001. Upon his return, he and thevictim’s mother resumed having unprotected sex.

Sometime toward the end of November, 2001, thevictim complained to her mother about irritation in hervaginal area. When her mother examined the victim,she observed that the area was discolored. Thinkingthat the irritation was caused by the liquid soap she

had been using, the mother disposed of the soap. Whenthe irritation persisted, the mother brought the victimto Yale-New Haven Hospital on December 19, 2001,where the victim was examined and given medication.During the examination, the victim complained that shehad been feeling pain during urination for several days.On the basis of the reported symptoms, the victim wastested for a urinary tract infection and treated withAmoxicillin. Shortly thereafter, on December 27, 2001,the victim’s mother was admitted to the hospital witha high fever and abdominal pain and was diagnosed witha kidney infection. While in the hospital, the mother wastested and treated presumptively for chlamydia. Whenthe test results came in, they were negative. She wasdischarged on December 31, 2001, and returned homethat day.

On January 15, 2002, the victim’s mother once againbrought the victim to the hospital because the victim’svaginal area had become swollen and had been secre-ting discharge, and because the victim continued toexperience painful urination, with traces of blood inher urine. Hospital personnel examined her, thenadministered testing the next day. On January 18, 2002,the hospital informed the victim’s mother that the victimhad tested positive for chlamydia. At that point, thevictim was given a one time dose of Azithromycin. Fol-lowing treatment, although the victim’s symptoms attimes were less severe, they persisted until at least May15, 2002, when the mother brought her back for furthertesting and treatment.

Between January 18, 2002, and May 23, 2002, whenthe victim finally identified the defendant as herattacker, the victim was interviewed by various hospitalpersonnel, social workers and her kindergarten teacher.Catherine Hammie, an investigator for the departmentof children and families (department), conducted thefirst interview of the victim, which was a home inter-view that took place sometime in late January. At thattime, the victim denied that anyone had touched her‘‘private parts.’’ Nevertheless, on the basis of the vic-tim’s positive chlamydia test, Hammie requested thatall of the adults living in the household, the mother, thefather and the defendant, obtain testing for chlamydia.4

Hammie returned a number of times for further inter-views, and on February 13, 2002, brought the victim tothe Yale Sexual Abuse Clinic (clinic) at Yale-New HavenHospital, where the victim was examined by Janet Mur-phy, a pediatric nurse practitioner at the hospital. Mur-phy did not observe any discharge from the victim’svaginal area at that time, but was unable to perform atest for chlamydia because the victim was very fearfulof being subjected to the test again.

On March 13, 2002, Hammie brought the victim backto the clinic for an interview with Theresa Montelli, alicensed clinical social worker and forensic interviewer5

who worked at the clinic. At the beginning of the inter-view, the victim told Montelli that she had becomeinfected in her vaginal area from bathing with herbrother. She did not at that time claim that the defen-dant had made any sexual contact with her. During thatinterview, she stated only that the defendant sometimesplayed tickle games with her. When Montelli asked thevictim to tell her something she did not like about thedefendant, however, Montelli observed that the victim’seye contact ceased and her entire aspect changed mark-edly, from friendly and carefree to very sad.

After the interview with Montelli was finished, Ham-mie spoke with the victim. During that conversation,the victim told Hammie that the defendant played hideand seek, and tickle games with her. When Hammieasked the victim what it was she did not like about thedefendant, the victim did not reply, but became verysad and quiet. Hammie also asked the victim whethershe had ever seen the defendant change his clothes infront of her, and the victim replied that she had not.

On the following day, Montelli again interviewed thevictim. When Montelli resumed asking questions aboutthe defendant, the victim responded that she did notwant to talk about him. Because the victim had men-tioned on the prior day that she had a secret, Montelliasked her about it. The victim said that her secret wasabout ‘‘dancing with daddy.’’ When Montelli asked heronce again about the defendant, the victim’s aspectchanged, and she said that she did not want to talkabout it anymore and that her mother had told her notto say anything.6

On May 15, 2002, because the victim’s symptoms ofvaginal discharge and irritation had become moresevere, the mother brought her to the clinic to seeMurphy, who examined the victim and tested her forchlamydia. The results were positive. The victim wastreated again with Azithromycin, this time over a courseof five days. When she was tested for chlamydia againin June, the results were negative.

On May 23, 2002, the victim’s mother brought her tomeet with Magdalis Gonzalez, the victim’s kindergartenteacher, and asked Gonzalez to speak to the victim inorder to find out how she had become infected. Gonza-lez agreed to speak to the victim privately. During theirmeeting, Gonzalez first asked the victim if her fatherhad touched her. The victim responded that he had not,and that it was her godfather, the defendant, who hadtouched her. After her meeting with the victim, Gonza-lez called the department and spoke to Hammie,informing her of the victim’s allegations. Hammie thenwent to the school, invoked an administrative hold onthe child, and immediately brought her to the clinic fora third interview with Montelli.

During the interview, the victim described three sepa-

rate occasions on which the defendant had sexual con-tact with her. The victim said that all three incidentshad occurred in the upstairs of the family home.

During her videotaped testimony, the victimdescribed the three incidents. The first incidentoccurred during the daytime, in her parents’ bedroom,where the defendant slept when he stayed at the houseovernight.7 While the mother was downstairs and thevictim’s brother was sleeping in his crib in the children’sbedroom, the defendant removed his pants, the victim’spants and panties, then penetrated the victim vaginallywith his penis. The second occasion occurred in themorning, when the mother was downstairs makingchocolate milk for the victim and her brother, whowas in his crib. The defendant came into the children’sbedroom and got on top of the victim while she waslying down on her back in her bed. The victim waswearing shorts and a shirt, and the defendant had onboxers. The victim told the defendant that her motherwas coming, and the defendant left the room and closedthe door behind him. The third incident happened whenthe victim was watching television in the children’sbedroom while her brother was sleeping in his crib.The mother was downstairs, and the defendant was inthe parents’ bedroom. He called the victim into theparents’ bedroom, took off his pants and the victim’spants and penetrated the victim vaginally with his penis.Afterwards, the victim returned to the children’s bed-room. In her videotaped testimony, the victim statedthat the defendant told her, following the first and thirdincidents, that he would kill her mother if the victimtold her mother what had happened.

Immediately following the victim’s interview withMontelli, Hammie took the victim to Boys’ Village safehome (Boys’ Village), where she stayed for fifteen days.When Hammie brought the victim to Boys’ Village, thevictim cried and begged Hammie to take her home.

The state charged the defendant by means of a longform information with two counts each of sexual assaultin the first degree, sexual assault in the fourth degreeand risk of injury to a child, and one count each ofattempt to commit sexual assault in the first degree,attempt to commit sexual assault in the fourth degreeand attempt to commit risk of injury to a child. Follow-ing a jury trial, the defendant was convicted on allcounts. This appeal followed. Further facts will be setforth as necessary.

I

The defendant first claims that the trial court improp-erly refused to deliver a third party culpability charge.8

We agree with the defendant.9

‘‘In determining whether the trial court improperlyrefused a request to charge, [w]e . . . review the evi-dence presented at trial in the light most favorable to

supporting the . . . proposed charge. . . . A requestto charge which is relevant to the issues of [a] case andwhich is an accurate statement of the law must be given.. . . If, however, the evidence would not reasonablysupport a finding of the particular issue, the trial courthas a duty not to submit it to the jury. . . . Thus, atrial court should instruct the jury in accordance witha party’s request to charge [only] if the proposed instruc-tions are reasonably supported by the evidence.’’ (Inter-nal quotation marks omitted.) Brown v. Robishaw, 282Conn. 628, 633, 922 A.2d 1086 (2007).

Although we have often considered the question ofwhether third party culpability evidence was properlyexcluded by a trial court; see, e.g., State v. Smith, 280Conn. 285, 304, 907 A.2d 73 (2006) (concluding thattrial court improperly excluded third party culpabilityevidence proffered by defendant, that all semen sam-ples recovered from rape kit came from at least twopersons, and that defendant and other two accusedassailants had been excluded as sources of recoveredsemen); State v. West, 274 Conn. 605, 626, 877 A.2d 787(concluding that trial court properly precluded defen-dant from introducing unidentified latent finger andpalm prints recovered from victims’ home; becausedefendant offered no showing of when prints had beenmade or who made them, any conclusion that culpablethird party made them would involve impermissiblespeculation), cert. denied, 546 U.S. 1049, 126 S. Ct. 775,163 L. Ed. 2d 605 (2005); we have not yet considered thequestion of the standard to be applied to a defendant’srequest for a jury instruction on third party culpabilityevidence when such evidence has been introduced. Ourexisting case law governing the admissibility of thirdparty culpability evidence, as well as basic principlesof relevancy and reasonable doubt, lead us to concludethat the very standards governing the admissibility ofthird party culpability evidence also should serve asthe standards governing a trial court’s decision ofwhether to submit a requested third party culpabilitycharge to the jury.

We first review the standards governing the admissi-bility of third party culpability evidence. It is well estab-lished that ‘‘a defendant has a right to introduceevidence that indicates that someone other than thedefendant committed the crime with which the defen-dant has been charged. . . . The defendant must, how-ever, present evidence that directly connects a thirdparty to the crime. . . . It is not enough to show thatanother had the motive to commit the crime . . . noris it enough to raise a bare suspicion that some otherperson may have committed the crime of which thedefendant is accused.’’ (Internal quotation marks omit-ted.) State v. Smith, supra, 280 Conn. 303–304.

‘‘The admissibility of evidence of third party culpabil-ity is governed by the rules relating to relevancy.’’ (Inter-

nal quotation marks omitted.) State v. Ortiz, 252 Conn.533, 564, 747 A.2d 487 (2000). ‘‘Relevant evidence isevidence having any tendency to make the existenceof any fact that is material to the determination of theproceeding more probable or less probable than itwould be without the evidence.’’ (Internal quotationmarks omitted.) State v. West, supra, 274 Conn. 625;Conn. Code Evid. § 4-1. Accordingly, in explaining therequirement that the proffered evidence establish adirect connection to a third party, rather than raisemerely a bare suspicion regarding a third party, wehave stated: ‘‘Such evidence is relevant, exculpatoryevidence, rather than merely tenuous evidence of thirdparty culpability [introduced by a defendant] in anattempt to divert from himself the evidence of guilt.’’(Internal quotation marks omitted.) State v. Smith,supra, 280 Conn. 304. In other words, evidence thatestablishes a direct connection between a third partyand the charged offense is relevant to the central ques-tion before the jury, namely, whether a reasonabledoubt exists as to whether the defendant committed theoffense. Evidence that would raise only a bare suspicionthat a third party, rather than the defendant, committedthe charged offense would not be relevant to the jury’sdetermination. A trial court’s decision, therefore, thatthird party culpability evidence proffered by the defen-dant is admissible, necessarily entails a determinationthat the proffered evidence is relevant to the jury’sdetermination of whether a reasonable doubt exists asto the defendant’s guilt.

Given this context, we now turn to the question ofthe appropriate standards that should govern a trialcourt’s decision to charge the jury on third party culpa-bility evidence. We reiterate that a charge that is anaccurate statement of the law, is relevant to an issuein a case and is reasonably supported by the evidencemust be given. Because the standards governing theadmissibility of third party culpability evidence requirethat the trial court determine that such evidence berelevant to the jury’s determination of whether a reason-able doubt exists as to the defendant’s guilt, we con-clude that those same standards should govern whethera trial court should give an appropriate instruction onthird party culpability. Put another way, if the evidencepointing to a third party’s culpability, taken together andconsidered in the light most favorable to the defendant,establishes a direct connection between the third partyand the charged offense, rather than merely raising abare suspicion that another could have committed thecrime, a trial court has a duty to submit an appropriatecharge to the jury.

Gauged by this standard, we conclude that the trialcourt improperly declined to give the requested instruc-tion. Although it is a close case, the third party culpabil-ity evidence presented by the defendant, taken as awhole and considered in the light most favorable to the

defendant, was sufficient to establish a direct connec-tion to the victim’s father.

The evidence presented at trial that supported thedefendant’s third party culpability defense was as fol-lows. We begin with the most persuasive, and thereforetroubling, evidence that directly connects the fatherwith the crimes, namely, the testimony concerning thevictim’s ‘‘secret.’’ Montelli testified that the victim toldher during the March 13 interview that she had a secret.When Montelli asked who else knew the secret, thevictim responded that her father did. When Montelliasked the victim if the secret had anything to do withher body, the victim responded that it did, and thenidentified on a doll the part of her body that the secretinvolved, namely, an area between the doll’s belly andgenital area. Although the victim initially denied thatthe secret was about her father, on the next day, whenMontelli resumed the interview, the victim stated thatthe secret was, in fact, about her father. During thisportion of the interview, the victim claimed that thesecret she shared with her father was that she playedhide and seek with him and danced with him. The victimalso stated that she was ashamed to tell Montelli aboutthe secret. Montelli then asked the victim why she wasashamed, and, before the victim responded, also askedif the victim was afraid to tell anyone about the secret.The victim responded that, yes, she was afraid to tellthe secret. When Montelli asked her why she was afraid,the victim responded that her mother had told her notto tell anyone else about the secret, and that the victimwas afraid that if she told, her mother would becomeangry with her. Montelli also noted that during the timethat the victim was telling her about the secret, thevictim seemed very nervous.

This testimony—that the victim had a secret thatconcerned the part of her body between her belly buttonand her genital area, a secret that she shared with herfather, a secret that was about the fact that she andher father engaged in secret games together, a secretthat she was ashamed to tell, a secret that she wasafraid to tell because her mother had told her not totell anyone, a secret that made her nervous when shetalked about it—does more than raise a bare suspicion.It suggests a direct connection between the father andthe sexual assaults of the victim. This testimony pre-sents the type of third party culpability evidence thatwould permit a jury, if it had doubt about the credibilityof the victim’s testimony and the rest of the state’scase, to conclude that a reasonable doubt existed as towhether the defendant, rather than the victim’s father,committed the crimes.

Other evidence offers further support for the defen-dant’s third party culpability theory. The father hadreturned home a little more than one month prior tothe victim’s diagnosis with chlamydia. Specifically, the

father returned home on December 10, 2001, nine daysbefore the mother first brought the victim to the hospitalon December 19, 2001, and more than one month beforethe victim was first diagnosed with chlamydia on Janu-ary 16, 2002. Additionally, the mother testified that,while she was hospitalized from December 27 toDecember 31, 2001, the father was home with the victimand the victim’s brother and took care of them.

Murphy, the nurse practitioner who had examined thevictim, testified that, although the average time elapsedbefore the manifestation of symptoms of chlamydia isten days, symptoms can begin to show as early as withinone week of infection and as late as three weeks afterinfection. It is possible, therefore, that the father couldhave infected the victim upon his return home, particu-larly in light of the fact that the victim was first testedfor and diagnosed with chlamydia on January 16, 2002,slightly more than one month after the father hadreturned. The timing, therefore, of the father’s returnhome, so close in time to the victim’s diagnosis withchlamydia, supports the defendant’s third party culpa-bility defense because this testimony, taken togetherwith the father’s access to the victim while the motherwas hospitalized in late December, 2001, suggests thatthe father had the opportunity to infect the childwith chlamydia.10

Another piece of evidence that supports the defen-dant’s third party culpability theory is the victim’s testi-mony that her father showered with her and helped herto wash her private area. Montelli testified that in herrole as a forensic interviewer, she often asked a sus-pected victim about bathing procedures, because it isimportant for the interviewer to determine whethersomeone helps the child bathe. When asked whethersexual abuse could arise from bathing a child, Montelliresponded that it could. Furthermore, although she tes-tified that it is not uncommon for parents to bathewith their younger children, she also testified that theappropriateness of such behavior depends on the ageof the child, and that the age of the victim at the time,five years old, raised the possibility that it may havebeen inappropriate for the father to bathe with her.

Finally, we note that the father initially refused toobtain testing for chlamydia, only obtaining testingwhen Hammie arranged for him to do so free of charge.Although Hammie testified that the reason for thefather’s initial refusal was because he could not affordthe test and did not have health insurance, the jurywould have been free to disbelieve that financial consid-erations were the sole cause of the father’s delay intaking the test. Had they done so, the father’s delay inobtaining testing would support the defendant’s thirdparty culpability theory.11

On the basis of our analysis of the cumulative evi-dence presented at trial in support of the defendant’s

third party culpability defense, and viewing that evi-dence in the light most favorable to the defendant, weconclude that the defendant sustained his burden tooffer sufficient evidence to show a direct connectionbetween the father and the assault of the victim. Thetrial court, therefore, improperly refused to give thethird party culpability instruction.

The question remains whether the error was harm-less. It is unnecessary for us to determine whether weshould apply the constitutional or nonconstitutionalstandard of harmless error review in resolving thisissue, because the defendant meets the nonconstitu-tional standard of harmless error review applicable torulings in a criminal trial. That is, because we do nothave ‘‘a fair assurance that the error did not substan-tially affect the verdict’’; (internal quotation marks omit-ted) State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101(2006); we conclude that the error was not harmless.First, as we have already explained, the evidence wouldhave justified a jury determination that a reasonabledoubt existed as to the defendant’s guilt. A jury instruc-tion regarding the third party culpability evidence fromthe court may well have tipped the balance. Second,this was not a very strong case for the state. The primaryevidence against the defendant was the testimony, aswell as the out-of-court statements to third parties, ofthe victim, who was five years old at the time of theassaults, and eight years old at the time of trial. Themedical evidence in this case was equivocal, because,although it was clear that a child of five years old whotested positive for chlamydia had been sexuallyassaulted by someone, both the father and the defen-dant were tested months after the victim had been diag-nosed with chlamydia and both tested negative.12

II

The defendant claims that his right to confrontationwas violated by the admission of: (1) the videotapedtestimony of the victim; (2) Montelli’s testimonyrecounting the statements the victim made to her, whichwere admitted under the medical treatment exceptionto the hearsay rule; and (3) Gonzalez’ testimonyrecounting the statements the victim made to her, whichwere admitted under the constancy of accusationexception to the hearsay rule. The defendant concedesthat these claims are unpreserved, and he seeks to pre-vail pursuant to State v. Golding, 213 Conn. 233, 239–40,567 A.2d 823 (1989).13 Because the record is adequatefor review and the claim is of constitutional magnitude,we address each of his claims in turn.

We turn first to the defendant’s claim that the admis-sion of the victim’s videotaped testimony violated hisright to confrontation guaranteed by the sixth amend-ment to the United States constitution.14 The defendantcontends that the victim’s videotaped testimony,because it was taken prior to trial, constituted an out-

of-court statement by a witness against the defendant,and therefore that its admissibility was governed byCrawford v. Washington, supra, 541 U.S. 36. The defen-dant further claims that the admission of the videotapedtestimony at trial violated his sixth amendment rightto confrontation because the state failed to bear itsburden under Crawford of showing that the victim wasunavailable to testify at trial, and, in fact, did not evenattempt to make any such showing. Because we con-clude that Crawford does not apply, we disagree withthe defendant.

The following additional facts are relevant to theresolution of this issue. On March 18, 2004, the statefiled a motion pursuant to General Statutes § 54-86g(a), seeking to have the victim’s testimony taken outsidethe presence of the defendant via videotape, to be usedin lieu of in-court testimony during the trial.15 In supportof its motion, the state alleged that testifying in thepresence of the defendant would ‘‘be detrimental tothe victim,’’ and that she ‘‘would be so intimidated orotherwise inhibited by the physical presence of thedefendant that the trustworthiness of the victim’s testi-mony would be seriously called into question.’’ Asrequired under § 54-86g (a), the state requested that thevictim be permitted to testify before the trial judge, inthe presence of only the prosecutor, defense counseland any person whose presence would contribute tothe welfare and well-being of the victim, and that thedefendant be permitted to view the testimony in a wit-ness room equipped with a one-way mirror and withthe assistance of communication devices allowing himto communicate with his attorney during the proceed-ing. At the beginning of the hearing on the state’smotion, the court stated that the purpose of the hearingwas to determine ‘‘whether or not the child can testifyreliably . . . in [the defendant’s] presence.’’ During thehearing, the state presented the testimony of a medicalexpert, Karen Brody, a psychiatrist and the assistantmedical director at the Child Guidance Center of South-ern Connecticut, where she conducted forensic psychi-atric evaluations of children. On the basis of Brody’sevaluation of the victim, Brody testified that, in heropinion, the victim would be unable to testify reliablyin the presence of the defendant in court, and evenstated that she believed that the victim ‘‘would be virtu-ally unable to say anything’’ about the assaults in thepresence of the defendant. On the basis of Brody’s testi-mony, the court granted the state’s motion, finding thatthe state had met its burden to show, by clear andconvincing evidence, that the victim would be so intimi-dated by the presence of the defendant, that the trust-worthiness and reliability of her testimony seriouslywould be called into question. Subsequently, the vic-tim’s videotaped testimony was played for the jury dur-ing the defendant’s trial.

In Crawford v. Washington, supra, 541 U.S. 36, the

Supreme Court substantially revised its approach toconfrontation clause claims. Under Crawford, testimo-nial hearsay is admissible against a criminal defendantat trial only if the defendant had a prior opportunityfor cross-examination and the witness is unavailable totestify at trial. Id., 68. In adopting this ‘‘categorical’’approach, the court overturned existing precedent thathad applied an ‘‘open-ended balancing [test]’’; id., 67–68;conditioning the admissibility of out-of-court state-ments on a court’s determination of whether the prof-fered statements bore ‘‘adequate indicia of reliability.’’(Internal quotation marks omitted.) Ohio v. Roberts,448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).Although Crawford’s revision of the court’s confronta-tion clause jurisprudence is significant, its rules governthe admissibility only of certain classes of statements,namely, testimonial hearsay. In the wake of Crawford,therefore, the preliminary step in any confrontationclause analysis is the determination of whether the sub-ject statements are testimonial hearsay. Because theparties agree that the statements of the victim weretestimonial in nature, our inquiry focuses on whetherthe statements constituted hearsay under Crawford.

In reconsidering the test that it previously had appliedunder Ohio v. Roberts, supra, 448 U.S. 56, the court wasconcerned that the Roberts test ‘‘[had] stray[ed] fromthe original meaning of the [c]onfrontation [c]lause. . . .’’ Crawford v. Washington, supra, 541 U.S. 42. Inexplaining the need to craft a rule more in keeping withthe original intent of the clause, the court engaged ina detailed analysis of the background of the right toconfrontation. Id., 43. On the basis of that historicalbackground, the court concluded that ‘‘the principalevil at which the [c]onfrontation [c]lause was directedwas the civil-law mode of criminal procedure, and par-ticularly its use of ex parte examinations as evidenceagainst the accused.’’ (Emphasis added.) Id., 50. There-fore, the court inferred, ‘‘not all hearsay implicates the[s]ixth [a]mendment’s core concerns.’’ Id., 51. In distin-guishing the types of statements that do implicate thesixth amendment’s ‘‘core concerns’’ from those that donot, the court looked to existing common law at thetime of the ratification of the amendment in 1791. Id.,46. Particularly relevant to our analysis was the court’sobservation that, although ‘‘[s]ome early cases went sofar as to hold that prior testimony was inadmissiblein criminal cases even if the accused had a previousopportunity to cross-examine . . . [m]ost courtsrejected that view, but only after reaffirming that admis-sibility depended on a prior opportunity for cross-exam-ination.’’ (Citations omitted; emphasis in original.) Id.,50. Taken together with the court’s emphasis on theexisting common law at the time of ratification, thisobservation suggests that, as long as there was a previ-ous opportunity for cross-examination, prior testimonyis not the type of statement that implicates the sixth

amendment’s core concerns.

This conclusion is supported by the court’s summaryof the ‘‘core class of testimonial statements’’: ‘‘ex partein-court testimony or its functional equivalent—that is,material such as affidavits, custodial examinations,prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarantswould reasonably expect to be used prosecutorially. . . extrajudicial statements . . . contained in for-malized testimonial materials, such as affidavits, depo-sitions, prior testimony, or confessions . . . . [S]omestatements qualify under any definition—for example,ex parte testimony at a preliminary hearing.’’ (Citationsomitted; emphasis altered; internal quotation marksomitted.) Id., 51–52. Once again, the court indicatedthat prior testimony implicates the right to confronta-tion only when the circumstances under which the priortestimony was taken deprived the defendant of theopportunity to cross-examine the witness.

The procedures prescribed by § 54-86g (a) aredesigned to balance carefully both the defendant’s rightto confrontation and the state’s interest in securingreliable testimony from minor victims of sexual assault.See General Statutes § 54-86g (a). We approved of virtu-ally identical procedures in State v. Jarzbek, 204 Conn.683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061,108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).16 In that case,we addressed the same issues that are before us inthe present appeal, namely, whether the videotapedtestimony of the minor victim violated the defendant’sright to confrontation because the testimony was takenoutside the presence of the defendant, and whetherthose statements constituted out-of-court statements.Id., 689, 697. In rejecting the view that the videotapedtestimony constituted hearsay, we looked to the proce-dures followed by the trial court, and now mandated by§ 54-86g (a). We noted that the minor victim’s testimonywas ‘‘videotaped at a hearing before the trial judge, heldin a modified courtroom, and conducted specificallyfor the purpose of preserving the [witness’] testimonyfor trial . . . [and that] both the state and the defen-dant had a full opportunity to examine and cross-exam-ine the witness at the hearing.’’ Id., 696. We concludedthat these procedures not only made the videotapedtestimony ‘‘inherently more reliable than the out-of-court declarations characterized as hearsay,’’ but alsothat the procedures rendered the videotaped testimonythe ‘‘functional equivalent of testimony in court.’’ Id.,697.

The defendant does not contend in this appeal thatthe trial court did not implement the procedures man-dated by § 54-86g (a) and Jarzbek, and the recordreveals that, just as the statute and Jarzbek require, thetrial court heard the testimony in a witness room witha one-way mirror, and that the defendant had the oppor-

tunity for cross-examination. Because we have con-cluded that under such conditions the videotapedtestimony is the functional equivalent of in-court testi-mony, it was not testimonial hearsay and therefore doesnot fall within the ambit of Crawford. Our conclusionfinds further support in the facts that the procedurewas not ex parte and did not deprive the defendant ofthe opportunity for cross-examination. Therefore, thevictim’s testimony was not the type of prior testimonythat implicates the core concerns of the confronta-tion clause.

That conclusion, however, does not end our analysis.The question remains whether the fact that the witnesswas allowed to testify without having to face the defen-dant violated the defendant’s right to confrontation.The Supreme Court addressed this issue in Marylandv. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d666 (1990).17 In that case, the court recognized that theconfrontation clause ‘‘guarantees the defendant a face-to-face meeting with witnesses appearing before thetrier of fact’’; (internal quotation marks omitted) id.,844; but the court also noted that it had never concludedthat ‘‘the [c]onfrontation [c]lause guarantees criminaldefendants the absolute right to a face-to-face meetingwith witnesses against them at trial.’’ (Emphasis in origi-nal.) Id. In Craig, the child witness in a child abusecase was allowed to testify against the defendant byone-way closed circuit television. Id., 840. In concludingthat the procedure did not run afoul of the confrontationclause, the court noted that its precedents establishedthat ‘‘the [c]onfrontation [c]lause reflects a preferencefor face-to-face confrontation at trial . . . that mustoccasionally give way to considerations of public policyand the necessities of the case . . . .’’18 (Citations omit-ted; emphasis in original; internal quotation marks omit-ted) Id., 849. The court stated further: ‘‘[W]e hold that,if the [s]tate makes an adequate showing of necessity,the state interest in protecting child witnesses from thetrauma of testifying in a child abuse case is sufficientlyimportant to justify the use of a special procedure thatpermits a child witness in such cases to testify at trialagainst a defendant in the absence of face-to-face con-frontation with the defendant.’’ Id., 855. Finally, thecourt noted that the use of Maryland’s procedureallowing child victims to testify via closed circuit‘‘ensures the accuracy of the testimony and preservesthe adversary nature of the trial. . . . Indeed, whereface-to-face confrontation causes significant emotionaldistress in a child witness, there is evidence that suchconfrontation would in fact disserve the [c]onfrontation[c]lause’s truth-seeking goal.’’ (Citation omitted; empha-sis in original.) Id., 857.

We have concluded that, under appropriate circum-stances, the state’s interest in securing reliable testi-mony from the particular child victim in question mayoutweigh a defendant’s right of face-to-face confronta-

tion. State v. Jarzbek, supra, 204 Conn. 704. In orderto determine whether such appropriate circumstancesexist, ‘‘a trial court must determine, at an evidentiaryhearing, whether the state has demonstrated a compel-ling need for excluding the defendant from the witnessroom during the videotaping of a minor victim’s testi-mony. In order to satisfy its burden of proving compel-ling need, the state must show that the minor victimwould be so intimidated, or otherwise inhibited, by thephysical presence of the defendant that the trustworthi-ness of the victim’s testimony would be seriously calledinto question.’’ Id., 704–705. Our state rule places thegreater emphasis on the state’s compelling need tosecure reliable testimony, whereas the scheme foundconstitutionally permissible in Maryland v. Craig,supra, 497 U.S. 836, focused on protecting child wit-nesses from trauma. Both the Maryland statutoryscheme and our own under § 54-86g and Jarzbek, how-ever, recognize that protecting child witnesses from thetrauma of testifying in the face of the defendant andsecuring reliable testimony from such child witnessesare inextricably linked. Indeed, although our own sys-tem requires that ‘‘the primary focus of the trial court’sinquiry must be on the reliability of the minor victim’stestimony,’’ we stated in Jarzbek that ‘‘the trial courtmay consider the well-being of the witness as a signifi-cant factor in its analysis . . . .’’ State v. Jarzbek,supra, 705.

The trial court in the present case made the requiredparticularized finding. Specifically, the court found,based on the testimony of Brody, that the state hadmet its burden of showing, by clear and convincingevidence, that the victim would be so intimidated bythe presence of the defendant, that the trustworthinessand reliability of her testimony seriously would becalled into question. Under such circumstances, thestate’s compelling interest in securing reliable testi-mony from the child victim outweighed the defendant’sright of face-to-face confrontation. Moreover, the trialcourt employed all the safeguards mandated by thestatute, all of which are aimed at protecting the defen-dant’s right of confrontation and preserving the ‘‘adver-sary nature of the trial.’’ Maryland v. Craig, supra, 497U.S. 857. His defense counsel had ample opportunityfor cross-examination of the witness; he was offeredthe opportunity to view the testimony from behind aone-way mirror, with the opportunity for full and freecommunication with his attorney during questioning ofthe witness; the proceeding took place in a modifiedcourtroom setting with the trial judge present; and thejury was able, by viewing the videotape, to observe thetestimony and demeanor of the witness in order toevaluate her credibility. Under these circumstances, weconclude that the trial court struck the proper balancebetween protecting the defendant’s right of confronta-tion and the state’s interest in securing reliable testi-

mony from the child victim. Therefore, the defendant’sclaim fails on the third prong of Golding, because he hasfailed to show that the alleged constitutional violationexists. State v. Golding, supra, 213 Conn. 241.

We next address the defendant’s claim that the trialcourt improperly allowed Montelli to recount, duringher testimony, the statements that the victim had madeto her during the forensic interviews that Montelli con-ducted with the victim. Although the trial court admit-ted the child’s hearsay statements under the medicaltreatment exception to the hearsay rule, the defendantclaims that the court properly should have excludedthe statements as testimonial hearsay under Crawfordv. Washington, supra, 541 U.S. 36, because law enforce-ment personnel observed Montelli’s interviews with thevictim and were allowed to make and retain audiotapesof those interviews.

The following additional facts are relevant to ourresolution of this claim. Montelli, the licensed clinicalsocial worker whose interviews with the victim are thesubject of the defendant’s claim, was an employee ofYale-New Haven Hospital, in the Child Sexual AbuseClinic, at the time of the subject interviews. The clinic’sfunction is to provide medical and mental health evalua-tions of the children who have made allegations ofsexual abuse and formulate treatment plans for thechildren on the basis of those evaluations. Each forensicinterviewer works in conjunction with a medical profes-sional on a given case, and the medical professionalrelies upon the forensic interviewer’s work in per-forming the medical examination of the child, diagnos-ing the child, and formulating a treatment plan for thechild. In fact, Montelli testified that the information sheobtains during the mental health evaluation of the childis ‘‘crucial’’ to the medical provider in his or her exami-nation of the child. The medical professional and theforensic interviewer engage in ongoing communicationand consultation as the case unfolds.

Montelli’s interviews with the victim took place inthe clinic’s interview room, which is equipped with aone-way mirror. When such an interview is conducted,several persons observe the interview from behind themirror, including a police officer, a department repre-sentative, and, schedule permitting, Montelli’s partnerin the case. Hammie observed the interviews behind aone-way mirror, and during at least the first and thirdinterviews, a member of law enforcement also observedthe interview behind the one-way mirror. The first andthird interviews that Montelli conducted with the victimwere tape-recorded with a recording device suppliedby the police. Following each interview, Montelli gavethe cassette to the police. During the third and finalinterview with Montelli, on May 23, 2002, the victimdisclosed to her that the defendant had sexuallyassaulted her on three separate occasions.

As we stated previously in this opinion, post-Craw-ford confrontation clause analysis must begin with thequestion of whether the subject statements are testimo-nial hearsay. It is undisputed that Montelli’s testimonyregarding the victim’s statements involves hearsay.Therefore, our preliminary inquiry focuses solely onwhether the victim’s statements to Montelli were testi-monial in nature, and subject to Crawford’s strictures,or nontestimonial, and thus subject to the rules of evi-dence. The United States Supreme Court has providedguidance on this issue in Davis v. Washington, U.S.

, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

In Davis, the court undertook to clarify one of theissues that it had left unresolved in Crawford, namely,the meaning of the term ‘‘testimonial.’’ Davis involvedthe admissibility, in two consolidated cases, of hearsaystatements that the defendants in each case had claimedwere testimonial under Crawford.19 Id., 2270. In Davis,the statements at issue were the victim’s statementsmade to a 911 dispatcher while the victim was beingassaulted. Id., 2270. During the telephone call, the victimhad identified the defendant as her attacker. Id., 2271.In Hammon v. Indiana, 829 N.E.2d 444 (Ind.), cert.granted, 546 U.S. 976, 126 S. Ct. 552, 163 L. Ed. 2d 459(2005), the companion case reported with Davis, thecourt considered the victim’s statements made to thepolice officer who responded to a reported domesticdisturbance. Davis v. Washington, supra, 126 S. Ct.2272. When the officer arrived, both the victim andthe defendant were still in the home, but any violencebetween the two had already ceased. Id., 2278. Theofficer persuaded the victim to fill out a battery affidavit,in which she stated that the defendant had attackedher and her daughter. Id., 2272.

In deciding whether the statements in the two caseswere testimonial or not, the court articulated the follow-ing rule: ‘‘Statements are nontestimonial when made inthe course of police interrogation under circumstancesobjectively indicating that the primary purpose of theinterrogation is to enable police assistance to meet anongoing emergency. They are testimonial when the cir-cumstances objectively indicate that there is no suchongoing emergency, and that the primary purpose ofthe interrogation is to establish or prove past eventspotentially relevant to later criminal prosecution.’’(Emphasis added.) Id., 2273–74. Applying this test, thecourt concluded that the victim’s statements in Daviswere nontestimonial because they were made whilethe attack was ongoing. During the call, her ‘‘franticanswers were provided over the phone, in an environ-ment that was not tranquil, or even (as far as any reason-able 911 operator could make out) safe.’’ Id., 2277.Under such circumstances, the primary purpose of thevictim’s statements were to ‘‘enable police assistanceto meet an ongoing emergency. [The victim] simply was

not acting as a witness; she was not testifying. . . .No witness goes into court to proclaim an emergencyand seek help.’’ (Citations omitted; emphasis in original;internal quotation marks omitted.) Id. By contrast, thecourt considered the statements at issue in Hammonto be similar to those the court had deemed testimonialhearsay in Crawford. Id., 2278. Because the officer’sinterrogation of the victim in Hammon was an inquiryinto ‘‘possibly criminal past conduct’’ and, therefore,his primary purpose in questioning her was to investi-gate, not to provide emergency assistance, the victim’sstatements were testimonial in nature. Id.

We first note that the court, in applying the test itarticulated in Davis, essentially performed a fact inten-sive test, based on the totality of the circumstances, toeach of the cases before it. We also note that, in bothDavis and Hammon, the court began with the premisethat the statements at issue were made to law enforce-ment officers or to agents of law enforcement. Id., 2274n.2. In fact, because the court assumed without decidingthat the actions of 911 operators can be acts of thepolice, it was ‘‘unnecessary to consider whether andwhen statements made to someone other than lawenforcement personnel are ‘testimonial.’ ’’ Id. Thus, thetest articulated in Davis provides clear guidance fordelineating testimonial and nontestimonial statementswhen those statements are made to a member of lawenforcement or to an agent of the police. Under thosecircumstances, the classification of the statementsdepends on whether the member or agent of lawenforcement is acting in order to address an ‘‘ongoingemergency’’ or to ‘‘establish or prove past events poten-tially relevant to later criminal prosecution.’’ Id., 2273–74. It is apparent from this formulation of the test thatthe timing of the statements in relation to the subjectevents is crucial to the determination of the testimonialnature of the statements.

The court in Davis declined to resolve, however,‘‘whether and when statements made to someone otherthan law enforcement personnel are ‘testimonial.’ ’’ Id.,2274 n.2. Nonetheless, the court’s analysis makes clearthat the determining factor resolving whether the sub-ject statements are testimonial or nontestimonial is theprimary purpose of the interrogation between thedeclarant and the witness whose testimony the statelater seeks to introduce regarding the declarant’s state-ments; that is, whether the interrogation is primarilyintended to provide assistance to the declarant or tofurther investigation and preparation for prosecution.It is only the second purpose that implicates the con-frontation clause. Put another way, statements takenby government actors who are not members of lawenforcement are testimonial if the interview is the func-tional equivalent of police interrogation with the pri-mary purpose of establishing or proving past eventspotentially relevant to later criminal prosecution. This

is consistent with Crawford’s identification of the ‘‘coreclass of testimonial statements’’ as including ‘‘ex partein-court testimony or its functional equivalent—that is,material such as affidavits, custodial examinations,prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarantswould reasonably expect to be used prosecutorially’’and ‘‘statements that were made under circumstanceswhich would lead an objective witness reasonably tobelieve that the statement would be available for useat a later trial . . . .’’ (Citation omitted; emphasisadded; internal quotation marks omitted.) Crawfordv. Washington, supra, 541 U.S. 51–52. Declarants whomake statements, even regarding a possible crime, inorder to obtain assistance, do not do so with the intentor expectation of assisting the state in building a caseagainst a defendant, nor do the recipients of such state-ments act with such intent or expectation. As the courtstated in Davis, when making statements in order toobtain emergency assistance, ‘‘[the victim] simply wasnot acting as a witness; she was not testifying. . . .No witness goes into court to proclaim an emergencyand seek help.’’ (Citations omitted; emphasis in original;internal quotation marks omitted.) Davis v. Washing-ton, supra, 126 S. Ct. 2277. Thus, in focusing on theprimary purpose of the communication, Davis providesa practical way to resolve what Crawford had identifiedas the crucial issue in determining whether out-of-courtstatements are testimonial, namely, whether the cir-cumstances would lead an objective witness reasonablyto believe that the statements would later be used ina prosecution.20

Applying these principles to the present case, wefocus our inquiry on the primary purpose of Montelli’sinterviews with the victim in determining whether thevictim’s statements were testimonial in nature. Underthe facts of the present case, it is clear that the primarypurpose of those interviews was to provide medicalassistance to the victim. The clinic’s system, in eachcase of alleged sexual abuse, of pairing a forensic inter-viewer who specializes in mental health assessmentand treatment with a medical care provider, suggeststhat the clinic views the treatment of the victim’s mentaland physical harms suffered due to the abuse as closelylinked. This conclusion is bolstered by the fact that themedical care provider relies upon the forensic inter-viewer’s work in examining the child, by the repeatedcommunications and consultations between the medi-cal care provider and the forensic interviewer, and bythe participation of the forensic interviewer in the ulti-mate diagnosis and formulation of a treatment planfor the child. The structure of the clinic’s treatment ofalleged victims of sexual abuse leads us to concludethat Montelli, as a forensic interviewer, was an integralpart of the chain of medical care.

As we noted in State v. Cruz, 260 Conn. 1, 12, 792

A.2d 823 (2002), a social worker is a mandated reporterpursuant to General Statutes § 17a-101.21 Thus, Montelliwas required by law to report the suspected child abuse.Moreover, the practice of allowing law enforcementpersonnel to observe the interviews was consistent withthe goals underlying General Statutes § 17a-106a, whichallows for the creation of multidisciplinary teams forthe purpose of reviewing cases of child abuse.22 Thestated purposes of the multidisciplinary teams includesthe advancement and coordination of the prompt inves-tigation of suspected cases of child abuse, but alsoincludes the goals of reducing the trauma to the childvictim and ensuring the protection and treatment of thechild victim. General Statutes § 17a-106a (a). Montelliin fact testified that she was a member of a ‘‘multidisci-plinary investigative team’’ that included social work-ers, medical providers and a child life specialist.Working together with other agencies with what shereferred to as a larger, ‘‘umbrella’’ group, the team hasas its goal the promotion of child welfare. By allowinglaw enforcement personnel, as well as a representativefrom the department, to observe some of the interviews,Montelli reduced the chances that representatives fromthose agencies would need to interview the child sepa-rately, thus avoiding the need to subject the victim tothe trauma of repeated interviews. There is no evidencein the record to indicate that the victim’s interviewswith Montelli were at the instruction or request of lawenforcement. Instead, the record reflects that Hammie,an investigator with the department, initially broughtthe victim and the victim’s mother to the clinic forexaminations. Moreover, there is no indication thatMontelli was in the employ of a law enforcement agencyand no evidence that she cooperated or assisted inthe investigation of the defendant. The purpose of herinterviews was related solely to securing the welfareof the child. As she explained during her testimony:‘‘[T]he purpose of my interview was to obtain informa-tion that would help us in determining what happenedand what steps need to take place at that point.’’ Whenquestioned regarding what those ‘‘steps’’ would include,she clarified: ‘‘Medical treatment to secure her safety.Mental health treatment, if necessary.’’ On the basis ofthese facts, we conclude that the primary purpose ofthe interviews was not to build a case against the defen-dant, but to provide the victim with assistance in theform of medical and mental health treatment. There-fore, the statements were nontestimonial, and theadmission of those statements did not violate the defen-dant’s right to confrontation.23

The defendant’s third and final confrontation chal-lenge is directed at the testimony of Gonzalez, the vic-tim’s kindergarten teacher, regarding the statementsthe child made to her regarding the defendant. Thecircumstances of this interview, however, did not evenremotely resemble an interview that would be consid-

ered to elicit testimonial statements under Davis andCrawford. The child met with the teacher at her moth-er’s request because the mother trusted the teacher andwas concerned when she discovered that the child hadtested positive yet again for chlamydia, and there is nosuggestion in the record that the teacher performed anyinvestigatory function whatsoever. The admission ofthe statements did not implicate the defendant’s rightto confrontation.

III

The defendant next claims that the trial court abusedits discretion in admitting the testimony of Gonzalez,as constancy of accusation testimony, regarding thestatements the victim had made to her on May 23, 2002.Specifically, the defendant contends that this testimonywas barred by our decision in State v. Samuels, 273Conn. 541, 871 A.2d 1005 (2005). We disagree.

The following additional facts are relevant to ourresolution of this issue. On March 6, 2002, Hammiefiled a report with the New Haven police department,informing the department that the victim had testedpositive for chlamydia. On May 27, 2005, the defendantfiled a motion in limine seeking to preclude the statefrom introducing any constancy of accusation testi-mony by witnesses who spoke to the victim after March6, 2002. After hearing argument from the parties, thetrial court denied the defendant’s motion, and the testi-mony of Gonzalez, reporting the statements the victimmade to her regarding the defendant, were admittedunder the constancy of accusation doctrine.

We first set forth the applicable standard of review.‘‘[T]he trial court has broad discretion in ruling on theadmissibility . . . of evidence. . . . [E]videntiary rul-ings will be overturned on appeal only where there wasan abuse of discretion and a showing by the defendantof substantial prejudice or injustice.’’ (Internal quota-tion marks omitted.) Id., 547.

We recently reviewed the historical and ideologicalunderpinnings of the constancy of accusation doctrine,which ‘‘traces its roots to the fresh complaint rule . . .[t]he narrow purpose of [which] was to negate anyinference that because the victim had failed to tell any-one that she had been [sexually assaulted], her laterassertion of [sexual assault] could not be believed. . . .Because juries were allowed—sometimes eveninstructed—to draw negative inferences from the wom-an’s failure to complain after an assault . . . the doc-trine of fresh complaint evolved as a means ofcounterbalancing these negative inferences. Used inthis way, the fresh complaint doctrine allowed the pros-ecutor to introduce, during the case-in-chief, evidencethat the victim had complained soon after the [sexualassault]. Its use thereby forestalled the inference thatthe victim’s silence was inconsistent with her present

formal complaint of [assault]. . . . In other words, evi-dence admitted under this doctrine effectively servedas anticipatory rebuttal, in that the doctrine often per-mitted the prosecutor to bolster the credibility of thevictim before her credibility had first been attacked.. . . The fresh complaint doctrine thus constituted arare exception to the common-law rule that prohibitedrehabilitative evidence in the absence of an attack onthe witness’s credibility. . . .

‘‘In State v. Troupe, [237 Conn. 284, 303, 677 A.2d 917(1996)], we observed that the state and the victim bothhave a legitimate interest in protect[ing] against theunwarranted, but nonetheless persistent, view that asexual assault victim who does not report the crimecannot be trusted to testify truthfully about the incident.On the other hand, we observed that a defendant hasan interest in not being unreasonably burdened by suchaccrediting or supporting evidence, which . . . gener-ally is not admissible in the trial of crimes other thansexual assault. Id., 302. In light of these competing inter-ests, we rejected the then existing rule that a personto whom a sexual assault victim had complained couldprovide substantive testimony with respect to the inci-dent. See id., 303–304. Instead, we concluded that aperson to whom a sexual assault victim has reportedthe assault may testify only with respect to the fact andtiming of the victim’s complaint; any testimony by thewitness regarding the details surrounding the assaultmust be strictly limited to those necessary to associatethe victim’s complaint with the pending charge, includ-ing, for example, the time and place of the attack orthe identity of the alleged perpetrator. In all otherrespects, our current rules remain in effect. Thus, suchevidence is admissible only to corroborate the victim’stestimony and not for substantive purposes. Before theevidence may be admitted, therefore, the victim mustfirst have testified concerning the facts of the sexualassault and the identity of the person or persons towhom the incident was reported. In determiningwhether to permit such testimony, the trial court mustbalance the probative value of the evidence against anyprejudice to the defendant. . . .

‘‘In light of the history and purpose of the constancyof accusation doctrine we further concluded, in Statev. Samuels, supra, 273 Conn. 551–52, that statementsmade by a victim after he or she had filed an officialcomplaint with the police were inadmissible as con-stancy of accusation evidence. In arriving at this conclu-sion, we reasoned that [o]nce a sexual assault victimhas reported the crime to the police . . . corroborativetestimony by constancy witnesses that is based on post-complaint conversations with the victim, even if rele-vant, no longer serves the purpose of countering a nega-tive inference as to the victim’s credibility because itis the inconsistency between the victim’s silence follow-ing the assault and her subsequent complaint to the

police that gives rise to such an inference.’’ (Citationsomitted; internal quotation marks omitted.) State v.McKenzie-Adams, 281 Conn. 486, 539–41, 915 A.2d 822(2007). Although the state had argued in Samuels that‘‘no additional restrictions should be imposed on theuse of constancy of accusation testimony when thesexual assault victim is a child,’’ we expressly declinedto consider the claim. State v. Samuels, supra, 555.

The history of the constancy of accusation doctrine,and the reasons for which we imposed the bright linerule in Samuels, persuade us that Samuels is not trig-gered when the declarant is a young child, as in thepresent case, and a state agency, rather than the child’sparent or guardian, makes an official complaint to thepolice on behalf of the victim. Because young childrenwill rarely, if ever, make an official complaint to thepolice, and because a state agency cannot be consideredas an agent or a surrogate for the child in making sucha complaint but, rather, must be viewed as acting infulfilling its own institutional and statutory obligations;see General Statutes § 17a-101 (b); see footnote 21 ofthis opinion; the reasoning of Samuels simply does notapply. Samuels is a limitation on the constancy of accu-sation doctrine, based on the notion that, once a victimhas herself reported the crime to the police, there wouldno longer be any basis for an inference that her postas-sault silence was inconsistent with her in-court testi-mony. The need for that limitation is simply not presentwhen the victim is a young child and a state agencyhas filed a police report based on information disclosedto it, and the testimony of the state agency or agentis simply not relevant to the credibility of the victim.Therefore, the March 6, 2002 report to the New Havenpolice department by Hammie did not trigger Samuels.Accordingly, the complaints that the victim made toGonzalez on May 23, 2002, were not barred by Samuels,and the trial court did not abuse its discretion in permit-ting the constancy testimony.24

IV

We next address the defendant’s claim that the trialcourt failed to inquire adequately into his complaintsthat he could not communicate effectively with his non-Spanish speaking attorney, in violation of the defen-dant’s right to counsel under the federal and stateconstitutions. We disagree that the trial court’s inquirywas inadequate.

The additional facts are relevant to our resolution ofthis claim. During the year preceding the trial of thepresent case, the defendant repeatedly made com-plaints to the court about his trial counsel, filing twomotions to dismiss counsel with the trial court and onemotion to dismiss counsel with the statewide grievancecommittee. During the hearing conducted on the defen-dant’s first motion to dismiss counsel, the defendantinformed the court that he was dissatisfied with the

communication between himself and counsel, and herequested a Spanish speaking attorney. At that time,the majority of communication between the defendantand his attorney had been in writing. The defendant’sattorney informed the court that both his secretary andhis paralegal spoke Spanish and had been translatinghis correspondence with the defendant into Spanish.The court assured the defendant that he would be pro-vided with an interpreter, and denied the defendant’smotion without prejudice. The court held another hear-ing to address the defendant’s concerns with his counselon December 13, 2004. During that hearing, the defen-dant and counsel both represented to the court that thedefendant did not agree with his attorney’s strategicdecisions in investigating the case and preparing fortrial. The defendant also told the court that he believedthe case was taking too long, that he did not ‘‘like’’ hisattorney, and that his attorney did not understand him.The court stated that the defendant had given it no legalbasis for dismissing counsel, and denied his motion todismiss counsel.

During a hearing on February 15, 2005, defense coun-sel informed the court that the defendant had filed amotion to dismiss counsel with the statewide grievancecommittee. The court treated the motion as though thedefendant had filed it with the trial court. On the meritsof the motion, the defendant claimed that his attorneyhad a conflict of interest, including, among a litany ofcomplaints, allegations that his counsel had providedhim with false information, failed to discuss his casewith him, and did not return calls or reply to writtencorrespondence. Defense counsel denied the allega-tions and informed the court that he had held discus-sions through an interpreter with the defendant, andthat the defendant had told him that he understood. Healso reiterated that all correspondence to the defendantfrom his office was in Spanish. The defendant thenalleged that his attorney had accused him of havingbeen caught with drugs in Stamford. When the attorneyexpressed confusion and an utter lack of knowledgeregarding a ‘‘drug case’’ in Stamford, the defendantstated simply that he did not trust his counsel. Uponthe defendant’s request to represent himself, the courtdenied his motion to dismiss counsel, but also ordered acompetency exam and scheduled a competency hearingpursuant to General Statutes § 54-56d.25 At the subse-quent hearing, the expert who had examined the defen-dant testified that the defendant was competent to standtrial. After the expert had so testified, the courtinformed the defendant that it had found him competentand asked the defendant if he still wished to dismisscounsel. The defendant conceded that he did not ‘‘getalong with’’ counsel, and repeated his request foranother attorney. The court explained to the defendantthat he was not entitled to his choice of court-appointedattorneys and, after confirming that defense counsel

believed that the attorney-client relationship had notbroken down to the extent that counsel would no longerbe able effectively to represent the defendant, and afterreceiving a negative answer when the court asked thedefendant if there was any other reason, beyond hisdislike of counsel, for his desire to have new counselappointed for him, the court denied the defendant’smotion.

Preliminarily, we note that, although the defendantcontends that article first, § 8, of the Connecticut consti-tution provides greater protection than that affordedunder the federal constitution, we consistently havearrived at the opposite conclusion. See, e.g., State v.Drakeford, 261 Conn. 420, 431, 802 A.2d 844 (2002)(‘‘state and federal constitutional standards for reviewof ineffective assistance of counsel claims are identical’’[internal quotation marks omitted]); State v. Fernandez,254 Conn. 637, 652, 758 A.2d 842 (2000) (treating provi-sions of article first, § 8, and sixth amendment as ‘‘essen-tially coextensive’’), cert. denied, 532 U.S. 913, 121 S.Ct. 1247, 149 L. Ed. 2d 153 (2001); Aillon v. Meachum,211 Conn. 352, 355 n.3, 559 A.2d 206 (1989) (citing tolong line of cases approving of federal standard ‘‘with-out ever once indicating that the protection affordedby our state constitution imposes a different standardfor review of such claims’’). Accordingly, we concludethat the same standard applies under both the federaland state constitutions.

We addressed a similar claim in State v. Vega, 259Conn. 374, 788 A.2d 1221 (2002). In Vega, we rejectedthe defendant’s claim that he was denied effective assis-tance of counsel as a result of the trial court’s refusalto permit his counsel to withdraw after the defendanthad informed the court that he had filed a grievanceagainst his attorney. Id., 380. In addressing the defen-dant’s claim we emphasized that ‘‘our review is of theactions of the trial court, not of the actions of defensecounsel.’’ Id., 385. We explained that the focus of ourinquiry on the trial court’s actions is due to the factthat, ‘‘[a]lmost without exception, we have required thata claim of ineffective assistance of counsel must beraised by way of habeas corpus, rather than by directappeal, because of the need for a full evidentiary recordfor such [a] claim. . . . On the rare occasions that wehave addressed an ineffective assistance of counselclaim on direct appeal, we have limited our review toallegations that the defendant’s sixth amendment rightshad been jeopardized by the actions of the trial court,rather than by those of his counsel. . . . We haveaddressed such claims, moreover, only where therecord of the trial court’s allegedly improper actionwas adequate for review or the issue presented wasa question of law, not one of fact requiring furtherevidentiary development.’’ (Emphasis in original; inter-nal quotation marks omitted.) Id.

‘‘[A] trial court has a responsibility to inquire intoand to evaluate carefully all substantial complaints con-cerning court-appointed counsel . . . .’’ State v. Rob-inson, 227 Conn. 711, 726, 631 A.2d 288 (1993). ‘‘Theextent of that inquiry, however, lies within the discre-tion of the trial court. . . . A trial court does not abuseits discretion by failing to make further inquiry wherethe [respondent] has already had an adequate opportu-nity to inform the trial court of his complaints.’’ (Inter-nal quotation marks omitted.) In re Jeremy M., 100Conn. App. 436, 456, 918 A.2d 944, cert. denied, 282Conn. 927, 926 A.2d 666 (2007).

In the present case, the trial court gave the defendantample opportunity to make his complaints known.Although the defendant several times requested a Span-ish speaking attorney, he never claimed that the inter-preter services that were provided to him wereinadequate. On the contrary, the court had before itthe repeated representations of counsel that translationservices, provided both by the attorney’s own staff andoutside interpreters, were being utilized. Our review ofthe record reveals that the true source of the defen-dant’s dissatisfaction with his attorney was not due toany language barrier between the defendant and hisattorney, but because of a personality conflict. Althoughthe constitution guarantees a defendant counsel that iseffective, it does not guarantee counsel whom a defen-dant will like. Therefore, the trial court did not abuseits discretion in denying the defendant’s motions.

The judgment is reversed and the case is remandedto the trial court for a new trial.

In this opinion the other justices concurred.* The listing of justices reflects their seniority status on this court as of

the date of oral argument.1 The defendant appealed from the judgment of conviction to the Appellate

Court, and we transferred the case from the Appellate Court to this courtpursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

2 In asserting this claim, the defendant relies on article 36 of the ViennaConvention on Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No.6820 (1970). The United States Supreme Court recently considered someof the procedural issues presented by article 36, and explained generallythat it ‘‘concerns consular officers’ access to their nationals detained byauthorities in a foreign country.’’ Sanchez-Llamas v. Oregon, U.S. ,126 S. Ct. 2669, 2675, 165 L. Ed. 2d 557 (2006). Article 36 (1) (b) of theVienna Convention provides in relevant part: ‘‘[I]f [the detained foreignnational] so requests, the competent authorities of the receiving State shall,without delay, inform the consular post of the sending State if, within itsconsular district, a national of that State is arrested or committed to prisonor to custody pending trial or is detained in any other manner. . . .’’ Thecourt explained: ‘‘In other words, when a national of one country is detainedby authorities in another, the authorities must notify the consular officersof the detainee’s home country if the detainee so requests.’’ Sanchez-Llamasv. Oregon, supra, 2675. Article 36 (1) (b) of the Vienna Convention alsorequires the detaining authorities to ‘‘inform the person concerned withoutdelay of his rights under this subparagraph . . . .’’

3 Although we resolve the present appeal based on our conclusion thatthe trial court improperly declined to instruct the jury on the defendant’sthird party culpability defense, we address the remaining claims raised bythe defendant because they are likely to arise on remand. Because, however,the defendant’s final claim, which alleged that the trial court improperly

failed to inform the defendant of his right to consular notification, is inade-quately briefed, we decline to address it. See, e.g., Celentano v. Rocque, 282Conn. 645, 659, 923 A.2d 709 (2007).

4 The mother tested negative for chlamydia in April, 2002. Because helacked health insurance, the father initially refused to go for testing. In mid-April, after Hammie arranged for him to be tested for free, the father tookthe test and tested negative for chlamydia. The defendant tested negativefor chlamydia in June, 2002.

5 A forensic interviewer conducts interviews with children who have madeallegations of sexual abuse.

6 The details of this interview are set forth in greater depth in part I ofthis opinion.

7 The victim’s mother testified that there were two bedrooms in the house,both on the second floor. The victim and her brother shared one bedroom,and, when the father was home, he and the mother occupied the otherbedroom. On nights when the defendant slept in the house, however, themother slept in the children’s bedroom and the defendant slept in the parents’bedroom. When both the defendant and the father slept in the house, thefather slept downstairs on the sofa, while the defendant slept in the parents’bedroom and the mother slept in the children’s bedroom.

8 The substance of the charge requested by the defendant provided asfollows: ‘‘The defendant has introduced evidence which indicates that athird party and not the defendant, committed the crime with which thedefendant is charged. In order to consider a third party defense the defendantmust show some evidence which directly connects a third party to the crimewith which the defendant is charged. It is not enough to show that anotherhad the motive to commit the crime. Nor is it enough to raise a baresuspicion that some other person may have committed the crime of whichthe defendant is charged. However, if the defendant shows evidence whichdirectly connects that third party with the crime then you are permitted toconsider third party culpability. In this case there has been evidence thatthe father . . . and the child victim had a secret that involved her bodyand that the mother of the child threatened her not to say anything toanybody. There is also evidence that the father did have opportunity tocommit the sexual assault on the child since the sexually transmitted diseasewas not found until January 16, 2002.’’

9 Our conclusion that the trial court improperly declined to instruct thejury on third party culpability renders it unnecessary for us to review thedefendant’s claim challenging four rulings of the trial court precluding theintroduction of testimony that was offered to support the defendant’s thirdparty culpability defense. The trial court precluded that testimony becauseit concluded that the defendant had not made the required showing tosupport a defense of third party culpability. We emphasize that we expressno opinion regarding whether some other evidentiary rule may or may notjustify the exclusion of the testimony in question.

10 We note that the mother testified that the victim first began to manifestsymptoms in November, prior to the father’s return home, and that themother did not bring the victim to the hospital at first because she believedthat the vaginal irritation was caused by the liquid soap that the motherhad been using to bathe the victim. We also note, however, that no hospitalrecords were introduced that might have corroborated this testimony.Whether to credit the mother’s testimony regarding the earlier onset of thevictim’s symptoms would be within the province of the jury.

11 We note that the defendant also relied on the fact that the victim criedwhen she was brought to Boys’ Village, contending that her trauma providedevidence of a motive to lie to protect her father, so that she could avoidfuture placement, away from her mother and father, in such a facility. It issimply too speculative, however, to suppose that a five year old child wouldfabricate a story implicating the defendant for a sexual assault committedagainst her by her father in order to prevent her removal from the familyhome, particularly in light of the fact that she was brought to Boys’ Villageonly after she had already implicated the defendant.

12 Murphy testified that the negative tests were not conclusive as towhether either the defendant or the father could have had chlamydia at thetime that the victim was infected, because chlamydia has the potential to‘‘clear itself’’ with time.

13 Under Golding, ‘‘a defendant can prevail on a claim of constitutionalerror not preserved at trial only if all of the following conditions are met:(1) the record is adequate to review the alleged claim of error; (2) the claimis of constitutional magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation clearly exists and clearly deprivedthe defendant of a fair trial; and (4) if subject to harmless error analysis,the state has failed to demonstrate harmlessness of the alleged constitutionalviolation beyond a reasonable doubt. In the absence of any one of theseconditions, the defendant’s claim will fail.’’ State v. Golding, supra, 213Conn. 239–40. The defendant also seeks to prevail on these claims underthe plain error doctrine. Because we conclude that the defendant cannotprevail under Golding, and because we see no basis on which the defendantmay prevail under the plain error doctrine, we reject his plain error claim.

14 The defendant also claims that the admission of the videotaped testi-mony violated his right to confrontation guaranteed by the state constitution,but does not provide a separate state constitutional analysis. We, therefore,decline to address it. See Batte-Holmgren v. Commissioner of Public Health,281 Conn. 277, 294 n.9, 914 A.2d 996 (2007) (court will not entertain stateconstitutional claim unless separately briefed and analyzed).

15 General Statutes § 54-86g (a) provides: ‘‘In any criminal prosecution ofan offense involving assault, sexual assault or abuse of a child twelve yearsof age or younger, the court may, upon motion of the attorney for any party,order that the testimony of the child be taken in a room other than thecourtroom in the presence and under the supervision of the trial judgehearing the matter and be televised by closed circuit equipment in thecourtroom or recorded for later showing before the court. Only the judge,the defendant, the attorneys for the defendant and for the state, personsnecessary to operate the equipment and any person who would contributeto the welfare and well-being of the child may be present in the room withthe child during his testimony, except that the court may order the defendantexcluded from the room or screened from the sight and hearing of the childonly if the state proves, by clear and convincing evidence, that the childwould be so intimidated, or otherwise inhibited, by the physical presenceof the defendant that a compelling need exists to take the testimony of thechild outside the physical presence of the defendant in order to insure thereliability of such testimony. If the defendant is excluded from the roomor screened from the sight and hearing of the child, the court shall ensurethat the defendant is able to observe and hear the testimony of the child,but that the child cannot see or hear the defendant. The defendant shall beable to consult privately with his attorney at all times during the taking ofthe testimony. The attorneys and the judge may question the child. If thecourt orders the testimony of a child to be taken under this subsection, thechild shall not be required to testify in court at the proceeding for whichthe testimony was taken.’’

16 In Jarzbek, we noted § 54-86g had not become effective until after theinitiation of the action against the defendant. State v. Jarzbek, supra, 204Conn. 686 n.2.

17 The defendant contends that the court’s decision in United States v.Gonzalez-Lopez, U.S. , 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409 (2006),impliedly overruled Craig. We disagree. The court in Gonzalez-Lopez hadbefore it a claim that the defendant’s sixth amendment right to counsel ofhis choice had been violated. Id. In the opinion, the court cites briefly toJustice Scalia’s dissent in Craig. ‘‘[T]he [g]overnment’s argument in effectreads the [s]ixth [a]mendment as a more detailed version of the [d]ue [p]ro-cess [c]lause—and then proceeds to give no effect to the details. It is trueenough that the purpose of the rights set forth in that [a]mendment is toensure a fair trial; but it does not follow that the rights can be disregardedso long as the trial is, on the whole, fair. What the [g]overnment urges uponus here is what was urged upon us (successfully, at one time, see Ohio v.Roberts, [supra, 448 U.S. 56]) with regard to the [s]ixth [a]mendment’s rightof confrontation—a line of reasoning that ‘abstracts from the right to itspurposes, and then eliminates the right.’ Maryland v. Craig, [supra, 497U.S. 862] (Scalia, J., dissenting).’’ United States v. Gonzalez-Lopez, supra,2562. Read in context, the language quoted from Craig merely alludes tothe court’s already stated rejection in Crawford of the premise underlyingRoberts, that the right to confrontation can be safeguarded by ensuring thatthe policy underlying the right, ensuring reliable testimony, is guaranteed.

18 We note that one of the precedents the court relied on was Ohio v.Roberts, supra, 448 U.S. 56. Although the court subsequently overruledRoberts in Crawford v. Washington, supra, 541 U.S. 36, that decision wasaimed at out-of-court statements, with the goal, in that context, of disentan-gling confrontation clause jurisprudence from the hearsay doctrine. Thecourt in Craig expressly declined to hold that the child witness’ closedcircuit testimony constituted out-of-court statements. Craig v. Maryland,

supra, 497 U.S. 851. Therefore, Craig’s reliance on Roberts, among otherprecedents, for its conclusion that the right to face-to-face confrontationproperly may be balanced against competing public interests, does notinvalidate its holding that such a balancing is proper.

19 The Supreme Court’s consolidated opinion in Davis resolved two caseson which it had granted certiorari: Hammon v. Indiana, 829 N.E.2d 444(Ind.) (addressing on scene statements to police officers), cert. granted, 546U.S. 976, 126 S. Ct. 552, 163 L. Ed. 2d 459 (2005); and State v. Davis, 154Wash. 2d 291, 111 P.3d 844 (involving statements to 911 operators), cert.granted, 546 U.S. 975, 126 S. Ct. 547, 163 L. Ed. 2d 458 (2005).

20 We recognize that other jurisdictions have concluded that statementsmade to a forensic interviewer are testimonial. The majority of these opin-ions, however, are factually distinguishable from the present case becausemost involve much more significant involvement in and control of the subjectinterviews by law enforcement. See, e.g., United States v. Gardinier, 65M.J. 60, 66 (2007) (victim’s statements to sexual assault nurse examinerduring forensic medical examination testimonial where sheriff’s officearranged for examination and paid for examination and was performed withneeds of law enforcement and prosecution in mind); People v. Sharp, 155P.3d 577, 581 (Colo. 2006) (victim’s statements during videotaped interviewwith forensic interviewer testimonial where police arranged, and to someextent, directed interview by directing interviewer to ask specific questionsand interviewer sought victim’s permission to bring police detective intointerview room); State v. Henderson, 284 Kan. 267, 160 P.3d 776, 787 (2007)(interview conducted jointly by social worker and detective testimonial;detective continually involved in interview process, initiated interview andinvolved in decision not to interview or attempt to locate anyone besidesdefendant); State v. Justus, 205 S.W.3d 872, 876 (Mo. 2006) (statementsmade to forensic interviewer testimonial where interviewer testified thatinterviews she conducted were for law enforcement and served investiga-tory, fact-finding purpose); State v. Pitt, 209 Or. App. 270, 277–79, 147 P.3d940 (2006) (videotaped interviews with forensic interviewer at child advo-cacy center, testimonial where interviewer is former police officer, centeroperates in partnership with district attorney’s office, interviews were con-ducted with express purpose of furthering police investigation, and inter-views were structured to elicit information from child that would be relevantto prosecution); In Interest of S.R., 920 A.2d 1262, 1263–64 (Pa. Super.2007) (statements during interview with forensic interview specialist weretestimonial where specialist was contacted initially by police, interview wascarried out under direction of police, who were consulted during interview,which was conducted expressly for purposes of investigation and poten-tial prosecution).

Decisions from other jurisdictions, also concluding that statements madeto a forensic interviewer are testimonial under Davis, although more factu-ally similar to the present case, are unpersuasive. An illustrative decisionis that in State v. Blue, 717 N.W.2d 558 (N.D. 2006), a case often cited forthe proposition that statements made to a forensic interviewer are testimo-nial. That case involved the victim’s statements to a forensic interviewer,while a police officer observed on closed circuit television from anotherroom. Id., 561. After the interview concluded, the interviewer gave thevideotaped recording to the officer. Id. The court considered four factsessential in determining that the victim’s statements were testimonial: (1)the interviewer’s job title included the term ‘‘[f]orensic,’’ which ‘‘by definitionmeans ‘suitable to courts.’ Merriam-Webster’s Collegiate Dictionary 490 (11thEd. 2005).’’ State v. Blue, supra, 564; (2) a police officer observed the inter-view; (3) the forensic interviewer delivered the videotape of the interviewto the police officer at the conclusion of the interview; and (4) there wasno ongoing emergency at the time of the interview. On the basis of thosefacts, the court concluded that the purpose of the interview was to ‘‘establishor prove past events potentially relevant to a later criminal prosecution. . . .’’ (Internal quotation marks omitted.) Id., 565, quoting Davis v. Wash-ington, supra, 126 S. Ct. 2274. According to the court, the only circumstanceunder which such an interview could be considered nontestimonial wouldbe if it were ‘‘done strictly for medical purposes, and not in anticipation ofcriminal proceedings . . . .’’ State v. Blue, supra, 563.

We find Blue unpersuasive for two reasons. First, the requirement thatinterview statements must serve only medical purposes in order to be consid-ered nontestimonial ignores the reasoning employed in Davis, which basesthe determination of the testimonial or nontestimonial character of interviewstatements on the ‘‘primary purpose’’ of the interview. Davis v. Washington,

supra, 126 S. Ct. 2273. Requiring that an interview serve an exclusivelymedical purpose in order to be considered nontestimonial, therefore, issimply not based on an accurate reading of Davis. The mere fact that policeare involved, as in the present case, because they are made privy to theinformation obtained in the interview, is not sufficient, without more, torender the interviews testimonial. The question, under Davis, is insteadwhether the primary purpose of the interview is to ‘‘establish or prove pastevents potentially relevant to a later criminal prosecution . . . .’’ (Internalquotation marks omitted.) State v. Blue, supra, 717 N.W.2d 565, quotingDavis v. Washington, supra, 2274. Second, we disagree that a forensicinterviewer must be responding to an ongoing emergency in order for state-ments made to such an actor to be deemed nontestimonial. Such a require-ment ignores the distinction between a forensic interviewer and a policeofficer. The court in Davis sought to determine under what circumstancesstatements made to a police officer would be considered testimonial, andsuggested that the key task is to determine the function of the interview orinterrogation, namely, whether the officer sought, in asking questions, toobtain information for the primary purpose of providing assistance to thevictim or for the primary purpose of building a case against the defendant.When police officers provide assistance to victims, it is generally when thereis an ongoing emergency, so it makes sense in that context to require thatthe statements be contemporaneous with the subject events. A social workeror forensic interviewer, however, by the very nature of the assistance pro-vided to a victim, always does so after the immediate emergency has passed.A victim of sexual assault does not seek counseling or mental health assess-ment during the assault. Therefore, the interview, and the statements derivedtherefrom, will always involve past events. The question is whether thestatements were elicited with the primary purpose of establishing thosepast events to build a case against the defendant, or with the purpose ofassisting the victim.

21 General Statutes § 17a-101 provides in relevant part: ‘‘(a) The publicpolicy of this state is: To protect children whose health and welfare maybe adversely affected through injury and neglect; to strengthen the familyand to make the home safe for children by enhancing the parental capacityfor good child care; to provide a temporary or permanent nurturing andsafe environment for children when necessary; and for these purposes torequire the reporting of suspected child abuse, investigation of such reportsby a social agency, and provision of services, where needed, to such childand family.

‘‘(b) The following persons shall be mandated reporters: Any physicianor surgeon licensed under the provisions of chapter 370, any resident physi-cian or intern in any hospital in this state, whether or not so licensed, anyregistered nurse, licensed practical nurse, medical examiner, dentist, dentalhygienist, psychologist, coach of intramural or interscholastic athletics,school teacher, school principal, school guidance counselor, school parapro-fessional, school coach, social worker, police officer, juvenile or adult proba-tion officer, juvenile or adult parole officer, member of the clergy,pharmacist, physical therapist, optometrist, chiropractor, podiatrist, mentalhealth professional or physician assistant, any person who is a licensed orcertified emergency medical services provider, any person who is a licensedor certified alcohol and drug counselor, any person who is a licensed maritaland family therapist, any person who is a sexual assault counselor or abattered women’s counselor as defined in section 52-146k, any person whois a licensed professional counselor, any person paid to care for a child inany public or private facility, child day care center, group day care homeor family day care home licensed by the state, any employee of the Depart-ment of Children and Families, any employee of the Department of PublicHealth who is responsible for the licensing of child day care centers, groupday care homes, family day care homes or youth camps, the Child Advocateand any employee of the Office of Child Advocate. . . .’’ (Emphasis added.)

22 General Statutes § 17a-106a provides in relevant part: ‘‘(a) The Commis-sioner of Children and Families, may as department head of the lead agency,and the appropriate state’s attorney establish multidisciplinary teams forthe purpose of reviewing particular cases or particular types of cases or tocoordinate the prevention, intervention and treatment in each judicial districtto review selected cases of child abuse or neglect. The purpose of suchmultidisciplinary teams is to advance and coordinate the prompt investiga-tion of suspected cases of child abuse or neglect, to reduce the trauma ofany child victim and to ensure the protection and treatment of the child.The head of the local law enforcement agency or his designee may request

the assistance of the Division of State Police within the Department ofPublic Safety for such purposes.

‘‘(b) Each multidisciplinary team shall consist of at least one representa-tive of each of the following: (1) The state’s attorney of the judicial districtof the team, or his designee; (2) the Commissioner of Children and Families,or his designee; (3) the head of the local or state law enforcement agencies,or his designee; (4) a health care professional with substantial experiencein the diagnosis and treatment of abused or neglected children, who shallbe designated by the team members; (5) a member, where appropriate, ofa youth service bureau; (6) a mental health professional with substantialexperience in the treatment of abused or neglected children, who shall bedesignated by the team members; and (7) any other appropriate individualwith expertise in the welfare of children that the members of the team deemnecessary. Each team shall select a chairperson. . . .’’

23 We also conclude, on the basis of the circumstances of the victim’sinterviews with Montelli, that the trial court did not abuse its discretion inadmitting the statements under the medical treatment exception to thehearsay rule. The facts of the present case closely mirror those in State v.Cruz, supra, 260 Conn. 10, in which we concluded that the rationale of themedical treatment exception applied to a social worker who was within thechain of medical care. Therefore, we concluded, statements made to sucha social worker, in furtherance of obtaining medical treatment and ‘‘pertinentto the diagnosis or treatment sought,’’ were admissible as an exception tothe hearsay doctrine. Id., 6. In the present case, the victim, at the behestof her mother and Hammie, made the subject statements to Montelli infurtherance of obtaining medical treatment. Montelli’s significant interactionand cooperation with the medical care provider in the victim’s case estab-lishes that Montelli was acting as an individual within the chain of medicalcare. Therefore, the trial court acted within its discretion in admitting Mon-telli’s testimony under the exception.

24 The defendant claims that our conclusion that Samuels is not triggeredwhen an agency files an official complaint on behalf of a victim, ‘‘ignoresthe reality that young children will rarely call the police or [the department]themselves.’’ We acknowledge that our ruling today may yield the resultthat in many cases involving sexual abuse of children, the bright line rule ofSamuels will not apply. The admission of constancy of accusation testimony,however, will still be subject to the discretion of the trial court and to therestrictions placed thereon by State v. Troupe, supra, 237 Conn. 284.

25 General Statutes § 54-56d provides in relevant part: ‘‘(a) . . . A defen-dant shall not be tried, convicted or sentenced while the defendant is notcompetent. For the purposes of this section, a defendant is not competentif the defendant is unable to understand the proceedings against him or heror to assist in his or her own defense. . . .

‘‘(c) . . . If, at any time during a criminal proceeding, it appears that thedefendant is not competent, counsel for the defendant or for the state, orthe court, on its own motion, may request an examination to determine thedefendant’s competency. . . .

‘‘(e) . . . The court shall hold a hearing as to the competency of thedefendant no later than ten days after the court receives the written report.Any evidence regarding the defendant’s competency, including the writtenreport, may be introduced at the hearing by either the defendant or thestate. If the written report is introduced, at least one of the examiners shallbe present to testify as to the determinations in the report, unless theexaminer’s presence is waived by the defendant and the state. Any memberof the clinical team shall be considered competent to testify as to the team’sdeterminations. A defendant and the defendant’s counsel may waive thecourt hearing only if the examiners, in the written report, determine withoutqualification that the defendant is competent. . . .’’